Silveira case, breaking news: ever wanted to see a PISSED OFF JUDGE!?


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Jim March
May 6, 2003, 04:13 PM
HOLY BLEEP!

Attorney Gary Gorski asked for an "En Banc Hearing" before 11 judges in the 9th Circuit, appealing his loss before Judge Reinhardt and two others. The Reinhardt-penned decision was so unutterably bad, some friends of mine want Congress to impeach him over it (not impossible, if the legislators don't like his "vote against God" in the pledge case). So I penned "Reinhardt’s Silveira Decision: Impeachable Offenses, A Bill Of Particulars", available with petition forms at:

http://www.americanminutemen.org/reinhardt.htm

Anyways, back to poor Gary: the 9th Circuit has turned down his request, so his next and final stop is the Nine Robes In DC.

En Banc denial orders are usually short, adding up to "no".

THIS one is 44 pages - four judges dissented and just...holy...LAMBASTED the rest! One guy in particular was so furious it's like nothing I've ever seen in a judicial decision...I'm going to quote it in it's entirety:

---------------
KOZINSKI, Circuit Judge, dissenting from denial of rehearing en banc:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted.

We have held, without much ado, that “speech, or . . . the press” also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that “persons, houses, papers, and effects” also means public telephone booths, see Katz v. United States, 389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases —or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. See Kleinfeld Dissent at 6011-12; see also Brannon P. Denning & Glenn H. Reynolds, Telling Miller’s Tale: A Reply to David Yassky, 65 Law & Contemp. Probs. 113, 117-18 (2002). The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon—a sawed-off shotgun—was reasonably susceptible to militia use. See Miller, 307 U.S. at 178. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller’s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.

The majority falls prey to the delusion—popular in some circles—that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth—born of experience—is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. Id. at 341- 42. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to “keep and carry arms wherever they went”). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.

All too many of the other great tragedies of history - Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few—were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 5997-99. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel’s mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:

A well regulated Militia, being necessary to the
security of a free State, the right of the people to
keep and bear Arms, shall not be infringed. [Ed: yes, those italics are in the dissent, in that fashion!]

The sheer ponderousness of the panel’s opinion—the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text—refutes its thesis far more convincingly than anything I might say. The panel’s labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it—and is just as likely to succeed.
---------------

:eek:

So what now?

United States Supreme Court, guys. This sucker is going all the way.

<scratches head>

The only extra trick the 9th could pull would be to AGREE to hear Don Kilmer's Nordyke case En Banc (he's already requested). Nordyke also has "pure 2A elements" and if they supported that with an "individual rights subject to limits" decision but dumped Gary, it might be an excuse for the USSC to stay out of it. But I just don't see that happening, it would mean the 9th isn't "internally consistent" and they're *admitting* it.

No, I think they're gonna dump Nordyke too. And then...well, we'll see, won't we?

:uhoh:

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Geech
May 6, 2003, 04:34 PM
Very nice read.

I have an openly liberal college professor who believes that the second amendment guarantees a collective right because of the grammar. I almost want to email this to him with a little "This guy doesn't think so" note.

Wildalaska
May 6, 2003, 04:53 PM
Jim that is the most stinging dissent I have ever seen from a Fed Judge...and I have seen a lot of them..

Can you post the entire decision?

Frohickey
May 6, 2003, 05:06 PM
Here is the 9th Circus Court of Appeal denying en banc hearing (http://www1.law.ucla.edu/~volokh/blog_data/silveira.pdf) courtesy of Eugene Volokh.

I've read a few bits and pieces, and its a great read, as far as the dissenting parts are.

It mentions 'The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed?where the government refuses to stand for reelection and silences those who protest'.

It mentions Nazi Germany, Stalin, Warsaw Ghetto.... lots of stuff. The SCOTUS needs to give this a hearing... with a capital NEED!

I like the 'sumo wrestler trying to kill a rattlesnake by sitting on it'... reminds me of the Gadsen flag.

Shamaya
May 6, 2003, 05:22 PM
http://keepandbeararms.com/silveira/enbanc.asp

There is a LOT going on behind the scenes in this case that leads us to believe it will be heard. If it's heard, U.S. v. Miller is going down.

tyme
May 6, 2003, 05:29 PM
pdf from 9th circuit's site:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/opinions+by+date?OpenView&Start=1&Count=100&Expand=1.1#1.1
2003 / May / 05/06/03 01-15098 ebo R

DJJ
May 6, 2003, 05:37 PM
If it's heard, U.S. v. Miller is going down.
And that's precisely why it won't be heard.

Any bets? I wish I were wrong about this; I really do. But the gov't and the judiciary have invested too much effort and have ignored the elephant in the room too long to suddenly admit it's there.

Frohickey
May 6, 2003, 05:46 PM
...?every citizen so enrolled and notified shall, within six months thereafter, provide himself with a good musket or firelock . . . or with a good rifle.? Each militiaman
also, by federal law, had to ?provide himself? with a bayonet, two spare flints, at least 24 cartridges if he brought
a musket or firelock, or 20 balls (bullets) if he brought a rifle, and all sorts of other shooting equipment denoted in the finest
detail by the statute.

Hmm... sounds like **********'s assault weapons ban, banning features such as bayonet lugs is contrary to federal law about the bayonet provision. I think the politi-critters that voted for this bill should be charged with treason. :cuss:

Kharn
May 6, 2003, 05:48 PM
Here's another goodie, copied from: http://www.freerepublic.com/focus/f-news/906659/posts

"The most thorough of the dissents is by Judge Kleinfeld. Kleinfeld writes...

About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, “the people,” as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to “the people,” including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of “the people” to be secure against unreasonable searches and seizures, or the right of “the people” to freedom of assembly, but times and personnel change, so that this right and all the other rights of “the people” are jeopardized by planting this weed in our Constitutional garden."

Knowing the Supreme Court's love of smacking the Ninth Circuit around, I agree with Jim that this sucker is going all the way.

Kharn

Desertdog
May 6, 2003, 05:52 PM
I think we need this particular judge nominated to the SCOTUS

We could also use a lot more like him.

Frohickey
May 6, 2003, 06:02 PM
quote:
------------------------------------------------------------------------
If it's heard, U.S. v. Miller is going down.
------------------------------------------------------------------------
And that's precisely why it won't be heard.

Any bets? I wish I were wrong about this; I really do. But the gov't and the judiciary have invested too much effort and have ignored the elephant in the room too long to suddenly admit it's there.

To quote Sgt Oddball (Donald Sutherland) in Kelly's Heroes...
"Why don't you knock it off with them negative waves? Why don't you dig how beautiful it is out here?" :neener:

Shamaya
May 6, 2003, 06:19 PM
-------------------------------------------------------
If it's heard, U.S. v. Miller is going down.
-------------------------------------------------------

And that's precisely why it won't be heard.

Any bets? I wish I were wrong about this; I really do. But the gov't and the judiciary have invested too much effort and have ignored the elephant in the room too long to suddenly admit it's there.Our organization has already bet nearly $30,000 on it, Mr. Defeatist.

A law review article we funded on the U.S. v. Miller ruling is complete. It brings out information (evidence) you've never seen. It's already been submitted to numerous journals. As soon as one of them publishes it, we'll release it, too. When you read it, and when you read our Certiorari Petition and our Brief, you will have a harder time hanging on to your "all is lost" attitude.

But we won't deprive you of your pessimism if you really must luxuriate in it thereafter. :D

Frohickey, I'm glad at least one person around here is living in the realm of Possibility. Thanks.

Kharn
May 6, 2003, 06:23 PM
Shamaya:
If it's heard, U.S. v. Miller is going down.

Are you saying that US v. Miller going down a good thing, or a bad thing?

Kharn

Zak Smith
May 6, 2003, 06:25 PM
Shamaya, There is a LOT going on behind the scenes in this case that leads us to believe it will be heard. If it's heard, U.S. v. Miller is going down.

I don't understand what you mean by "going down." It won't change what happened to Miller himself, and we all know the principles and tests proposed in Miller rather strongly support the right to own an M16 - it's the misrepresentation of Miller that supports gun-control.

Do you mean that you think the USSC will rule against the 2A?

-z

DigitalWarrior
May 6, 2003, 06:27 PM
I was gonna buy a Kimber this weekend, but it looks like I should spend the money making sure WinstonSmith will be able to buy a Kimber.

Shamaya
May 6, 2003, 06:34 PM
Shamaya:

quote:
--------------------------------------------------------------------------------
If it's heard, U.S. v. Miller is going down.
--------------------------------------------------------------------------------

Are you saying that US v. Miller going down a good thing, or a bad thing?U.S. v. Miller was a complete miscarriage of justice, for so many reasons it takes a law review article to expose them all. It must be overturned. Some people want to keep it to try to salvage some semblance of good out of it. But it's a pathetic excuse of a ruling from a poor excuse of a moron Justice. U.S. v. Miller must die, sooner the better. NFA '34 was then and is now unconstitutional. It must be repealed in whole. Same goes for EVERY federal gun law and 99.5% of ALL gun laws.

OOOPS. Edited to close my quote.

Shamaya
May 6, 2003, 06:40 PM
Do you mean that you think the USSC will rule against the 2A?No. S.Ct., if they hear this case, will overturn Miller -- or at least correctly interpret it. Yes, it contains shreds of help for our side, but the entire case and its results must be dispatched due to the many problems with the case. Be patient and we'll show you exactly why -- in a way that the liberals on the High Court will agree with, too.

Bear in mind that the legal genius helping us on this case behind the scenes is a former liberal. Read up on him here: http://KeepAndBearArms.com/lucas/roy.asp

If I could do a mind meld with you -- a Spock thang -- you'd be asking your friends to pitch in for this case.

Kharn
May 6, 2003, 06:48 PM
Shamaya:
I'll definitely have to read your article in order to believe that US v. Miller is bad case law. From what I have read of it, the only bad part in the entire case was when the Court noted that they did not know if a shotgun was standard military equipment or not, and they did not bother to do further research on the issue. US v. Miller is exactly what the Second Amendment is about: Civilians have a right to own military-style arms.

Regardless, this thread is getting way off topic, how about starting a new thread for discussing your article against US v. Miller?

Kharn

tyme
May 6, 2003, 07:09 PM
Angel, if you can, could you please elaborate on exactly what is "wrong" with U.S. v Miller that makes overturning it significant? Obviously it's not the clearest opinion in the world, and it certainly deserves some quality time in the underworld for allowing public policy to take a walk off the map. But it upheld (at least as Kleinfeld and I read it) the individual rights interpretation.

Shamaya
May 6, 2003, 07:09 PM
Can't afford the time, friend. We'll release it as soon as humanly possible -- maybe even before it gets published if need be. It's just that being able to cite the article in, say, "Yale Law Review Journal" is a big deal -- better than citing it to a URL on a "gun nut" website. :rolleyes:

Kharn
May 6, 2003, 07:21 PM
9th Circuit Judges moonlighting exposed:
http://www.latimes.com/includes/ramirez/ramirez_20020630.gif
:evil:

Kharn

Intune
May 6, 2003, 07:35 PM
The folks at Knob Creek range better clear out a bunch of land. The machinegun shoot is gonna be a LOT bigger! A whole bunch of restrictions are going to fall like dominos. If not, we know that they truly mean to oppress us.

Brett Bellmore
May 6, 2003, 07:45 PM
What's wrong with US v Miller (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=307&invol=174)? What's wrong with it is that they didn't uphold the lower court's ruling, that's what. The lower court, which the Supreme court reversed in Miller, ruled that,

"The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution, U.S.C.A.-'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Whereas the Supreme court went along with the gag that this law imposing a $200 transfer "tax" on items that cost anywhere from a nickle to twenty bucks, really was a revenue measure, and not the thinly disguised, blatently unconstitutional, gun control law we all know it was. Here's the precident they cited, from SONZINSKY V. UNITED STATES (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=300&invol=506#513):

"Inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts. ... They will not undertake, by collateral inquiry as to the measure of the regulatory effect of a tax, to ascribe to Congress an attempt, under the guise of taxation, to exercise another power denied by the Federal Constitution."

In other words, 100% tax, 1,000,000% tax, who cares? As long as a law claims to be a revenue measure, we're going to ignore what Congress is REALLY trying to accomplish with it. This is the precident that really got the ball rolling on the war on drugs, by the way, which in case you didn't know is theoretically a tax program. (Except that they jail you for not paying a tax they won't let you pay, just like with new machineguns.)

Constitutionally, whether the gun was practical for militia use or not was utterly irrelevant. Congress doesn't have the authority to ban stuff, and that's the case whether or not they pretend that they're really just taxing it. Infringing on the right of the people to keep and bear arms is something Congress is forbidden to do, even by using powers it has a legitimate claim to exercise.

The basic problem was that by the time Miller reached the Supreme court, FDR had succeeded in breaking their will to uphold the Constitution. They'd already agreed in the case of the Harrison Narcotic Act to pretend that Congress had the authority to ban things by taxing them outrageously. All they did in US v Miller was extend that illegitimate precident to firearms.

So, yes, US v Miller was a bad decision, but that evil was established precident by that time, and what was bad was that they skipped an oportunity to correct themselves.

tyme
May 6, 2003, 08:08 PM
Arguably, the U.S. Supreme Court can do anything it wants, but realistically, and within federal rules of procedure, could they have upheld the lower court's ruling given that no evidence was presented by the defense?

Now that there's "Loyalty Day," when is a president going to declare a "FDR destroyed this country and today we must all do our part to reverse the damage that's been done Day?"

Brett Bellmore
May 6, 2003, 08:25 PM
Sure, they could have. They could have simply denied cert. Declared the case moot. Or upheld the lower court's ruling without any hearing. Or solicited someone to argue Miller's side. Far less extraordinary, actually, than hearing the case with only one side present.

The point is that they weren't going to, because at that time they'd given up the fight, and were routinely upholding every federal law to come before them, no matter how blatently unconstitutional it was. In all likelihood it wouldn't have done a bit of good if Miller had shown up, and his lawyer had waved a WWII trench gun in front of the Justices. The law would still have been upheld, and the ruling would have been uglier, because they couldn't have copped out with that "no evidence has been presented" line.

I'd say we were actually lucky that Miller wasn't there. It resulted in us getting as positive a ruling as possible, given the 100% certainty that the law was going to be found constitutional no matter what. It was an ugly time to be arguing for constitutional limits on federal power, that's for sure.

Don Gwinn
May 6, 2003, 08:30 PM
The short list of what's wrong with Miller vs. US:

1. It upheld an unconstitutional law and has been used to uphold countless others. It conferred upon the U.S. government powers denied it by the Constitution.

2. It accepts the premise that the 2nd Amendment allows the government to ban weapons which are not for use in the militia. That ain't what it says. If the Founders had meant that, they'd have written "A Well-Regulated Militia being necessary to the security of a free State, the Right of the People to keep and bear arms intended and suitable for use in that militia shall not be infringed."

3. It ignored the nose-on-your-face obvious implications of its own test. The test used in Miller proposed that if it were proven or "within judicial notice" that the weapons banned by a law were "suitable for use in the militia or military" then the law was void. The GCA '34 did not only ban short shotguns, remember? It also banned (sorry, "taxed") fully-automatic weapons of any type. There were no fully-automatic weapons in civilian hands at the time that were NOT originally developed for and used by the military! BARs, Browning machine guns, Gatlings, Maxims, Thompsons--no sane person could argue that these weapons were not "suitable for use by the militia." Indeed, that was about the only thing they were ever good for, other than turning money into noise in a fun way.


When people say that Miller is better than you think, what they are really saying is that it has been misquoted and used to justify abuses far beyond its actual scope. That's true as far as it goes, but it doesn't make Miller a good or desirable thing.

Having Miller's test followed strictly and honestly would be better than the situation we have today.

However, the Miller decision did not follow the Miller test honestly in the first place--and if it had, it would still have been unconstitutional. Having it struck down would be far better than having it followed more honestly, even though either would be better than our current predicament.

QuickDraw
May 6, 2003, 09:09 PM
O.K,O.K.
Lets cut to the chase.How quickly does this get heard?
In our lifetime?

QuickDraw

Brett Bellmore
May 6, 2003, 09:26 PM
Depends. You fairly young?

Theoretically, according to it's own normal rules, the Supremes ought to take the appeal because of the conflict between the circuits between the 9th and the 5th. As a practical matter, if they don't want to take a 2nd amendment case, nobody can force them to.

And if they wanted to take a 2nd amendment case? They've had their opportunities in recent years, and passed 'em all up.

And the truth is that the circuit conflict in this instance is more verbal than practical. In the 9th circuit they say you don't have any 2nd amendment rights, and uphold every gun control law on earth. In the 5th circuit they say you do have 2nd amendment rights, and uphold every gun control law ANYWAY. That's not the kind of "conflict" the Supreme court has a pressing need to resolve. The Supreme court's not going to feel compelled to tackle this issue until one of the circuit courts actually strikes down a gun law on 2nd amendment grounds, instead of saying, "Yes, but...".

Frankly, I think the D.C. gun ban case that CATO is pursuing is far more likely to see the Supreme court. No "incorporation" issues involved there to muddy the water, and it's the strictest ban on the face of the planet. If that one isn't "unconstitutional", you can shred the 2nd amendment and use it for mulch, they're never going to admit any gun law goes too far.

QuickDraw
May 6, 2003, 09:39 PM
So no matter what happens,we're talking years or not at all.
I've never been very patient!:D

QuickDraw

Standing Wolf
May 6, 2003, 10:14 PM
The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel’s mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough

I'm sure even the leftist extremists haven't forgotten the Second Amendment: they're simply hoping we're too stupid to read and understand plain English.

tyme
May 6, 2003, 10:21 PM
I'm more interested in Silveira v Lockyer. Heaven forbid if I ever end up in D.C., a repeal of that gun ban would be more useful, but otherwise I'm very much interested in and very much more affected by whether the SCOTUS is going to finally acknowledge the 2nd but ignore the 14th and let States do whatever they want. That's just as bad. States ban knives, firearms, clubs...

Who has standing to challenge executive orders that only affect imporation? Can only a licensed importer challenge them?

Shamaya
May 6, 2003, 10:21 PM
Brett and Don are both very sharp and studied. Don, there are things about Miller that make it worse than you said -- you were kind. Brett, the CATO suit may have a better chance, but if it's heard, it still won't apply 2A to the states, which does no good for people in CA, NYC, MA, NJ, MD, etc. I know you know that, but that's why we need a case like Silveira -- we need 2A incorporated.The other gentleman (starts with a "T" but I didn't write it down) said:So no matter what happens,we're talking years or not at all.Best of all worlds could have cert. granted in October. We have until August 4 to file and have discussed filing on July 4, for obvious reasons. Amicus brief will be due 30 days after we file. Herr Lockyer will probably get an extension, because he's special. Earliest likely (wishful thinking) grant or denial of cert, therefore, is circa October. But they can sit on it for a while and ponder, check the barometer, whatever, and drag it into their next session if they want to -- and they probably will.

If they did, it'd be a blessing on our end as far as figuring out how to fund things like flights to woo amici, flights to prep for oral argument, yada yada. SAF spent roughly $150K fighting Emerson and it wasn't heard. We've raised and spent $30K and have had a little more donated today. So we get to create some cash to do what needs to be done and welcome the extra time.

If cert. is denied, all the original work done for the case will be applied to another 2A case. The Justices can't avoid 2A forever, no matter who says they can. Ideally, if they crap out on this one, we'll find a case and get a law thrown out in a state as a violation of 2A -- as Brett suggested. But this one is hot, now, so we're planning for the best knowing that there's always a possibility that the robes will screw our Plaintiffs like the screwed Emerson and Bean.

Drizzt
May 6, 2003, 10:35 PM
Associated Press Online

May 6, 2003 Tuesday 8:38 PM Eastern Time

SECTION: DOMESTIC NEWS

LENGTH: 400 words

HEADLINE: Supreme Court Ruling Possible on Weapons

BYLINE: DAVID KRAVETS; Associated Press Writer

DATELINE: SAN FRANCISCO

BODY:
A federal appeals court on Tuesday refused to reconsider its ruling that Americans don't have the constitutional right to own firearms, setting up the possibility of a Supreme Court ruling on the Second Amendment.

A panel of the 9th U.S. Circuit Court of Appeals upheld California's assault weapons ban in a 2-1 ruling last December. On Tuesday, a majority of the circuit's 25 active judges declined to rehear the case.

The 9th Circuit's ruling conflicts with a 2001 decision from the 5th U.S. Circuit Court of Appeals that said individuals have a constitutional right to guns. The man who challenged California's weapons ban promised an appeal to the nation's highest court.

"I'll have this filed by the end of the week," attorney Gary Gorski said.

California enacted the nation's first assault weapons ban in 1989 after a gunman fired into a Stockton school yard, killing five children. Several states and the federal government later passed similar or more strict bans.

State and federal laws barring assault and other types of weapons are routinely upheld on grounds that they are rational governmental approaches to combat violence. The Second Amendment has had little, if any, impact on those court decisions - except in the California case.

In dismissing the bulk of Gorski's challenge, the 9th Circuit panel said the Second Amendment was adopted not "to afford rights to individuals with respect to private gun ownership or possession," but to allow states to maintain militias.

The decision was written by Judge Stephen Reinhardt, who noted the Supreme Court's guidance on whether the Second Amendment gives individuals the right to bear arms was "not entirely illuminating." The high court, he said, has never directly said whether there is a constitutionally guaranteed right to possess weapons.

Larry Pratt, executive director of the 300,000-member Gun Owners of America, said he wants the Supreme Court to overturn Reinhardt's decision.

"If Judge Reinhardt prevails, the American people could become subjects of the government," Pratt said.

A spokeswoman for California Attorney General Bill Lockyer said he was "pleased that the court has upheld this important California law regulating assault weapons."

The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.



On the Net:

9th Circuit: http://www.ce9.uscourts.gov

Shamaya
May 6, 2003, 10:38 PM
Here's three more reports, the last one being the most extensive:

http://reuters.com/newsArticle.jhtml?type=topNews&storyID=2693481

http://www.ohio.com/mld/ohio/news/5800393.htm

http://www.bayarea.com/mld/mercurynews/news/5800278.htm

SkunkApe
May 6, 2003, 11:42 PM
Shamaya,

I just sent my donation to the SAF. I've waited must of my adult life for the issue to get to the supreme court, and I don't want to see your efforts fail for lack of funds.

You can count on more in the future.

Shamaya
May 7, 2003, 12:15 AM
SkunkApe:Shamaya,

I just sent my donation to the SAF. I've waited must of my adult life for the issue to get to the supreme court, and I don't want to see your efforts fail for lack of funds.

You can count on more in the future.That's great. SAF does some really good work. But SAF isn't funding this lawsuit. We asked for help. They declined to help financially but said they'd submit an amicus brief once we file the certiorari petition. I am a Life Member of SAF. When they were running the fundraising front lines for Emerson, I sent them $150, and our organization urged anyone who could to send them money, too.

But if you gave them money to help this lawsuit, my friend, it's not going to come this way.

Regardless, thank you. I got a note from a man today who sent us five dollars with an apology for not being able to send more. That kind of stuff gets me teary eyed. All I want is our rights restored. I have a son who is just shy of 7 months old. When he's a man, he will have better RKBA than we do -- I'll fight until I drop to make that happen. If I was a multi-gajillionaire like the people who fund VPC, Brady, etc., I'd fund the whole thing myself and feel very good about it.

SkunkApe
May 7, 2003, 12:36 AM
Oops! A typo on my part. I sent the donation to the link you posted, KeepAndBearArms.com. I clicked on the "make a donation" link.

Sorry for the confusion.

SkunkApe
May 7, 2003, 12:45 AM
One more thing. I'm a little concerned that the NRA and the SAf aren't supporting this case, and I wonder why.

This thread caught my attention because it was started by Jim March. I have the highest respect for Jim March's activism.

I'm sure you know that members of gun groups are constantly innundated by requests for money for alledgly dire situations. Heck, just last week someone started a thread on this forum criticizing me (gun owners in general) for not donating to an organization of which I'd never even heard. Out of all the pro-gun groups and causes, I'd like to be assured that this is the big one. Its sounds like it may be.

Jim March, is this the big one?

Wildalaska
May 7, 2003, 12:51 AM
Lets get ready to litigate!

Ya think its over in the Supreme Court...naaaahhh...theres a whole new world for the lawyers to explore...more shills for fundraising, more debate, more battles...

Because heres the bottom line, right from the dissent...the same thing myself and other "non absolutists" have been harping on:

"Like any right, it is not absolute. Just
as the right to freedom of speech is subject to limitations for
defamation, threats, conspiracy, and all sorts of other traditional
qualifications, so is the right to keep and bear arms.
Indeed, the word “infringed” in the Second Amendment suggests
that the right, such as it is, may not be “encroached upon,”
rather than that it, unlike all the other rights in the Bill of
Rights, is absolute. The one thing that is absolute is that the
Second Amendment guarantees a personal and individual
right to keep and bear arms, and prohibits government from
disarming the people."

I hope that Steve Halbrook files amicus curiae for the NRA or some other group, then I will feel real good about it.

Let the games begin.

WilddontgivemoneytoanonymouslawyersAlaska

Shamaya
May 7, 2003, 01:04 AM
I'm a little concerned that the NRA and the SAf aren't supporting this case, and I wonder why.NRA/CRPA's attorney tried to kill the case (http://keepandbeararms.com/information/Item.asp?ID=3556), SkunkApe. If you read their "reasoning", it looks like the same basic reason they've invaded the CATO case (http://keepandbeararms.com/information/Item.asp?ID=3577) -- so they can control the fight. That'd be fine if they had any successful Supreme Court litigation under their belts. But they don't. And the "reasoning" Chuck Michel used when trying to get the Silveira case dismissed ought to concern liberty advocates greatly. It's just plain whacko.

SAF, on the other hand... hard to say. When I talked to Alan Gottlieb asking for their help, I didn't take notes or record the call. As I recall, he had concerns that the case would be declined, but I may be remembering wrong. Ask him.

You can believe NRA, SAF, GOA and many other groups will be filing amicus briefs in this case. So will VPC, Brady and the rest of the groups who'd rather see a woman raped than a rapist shot. But the standard of excellence will be set by Silveira's lead attorney, with the powerful Supreme Court litigant Roy Lucas (http://KeepAndBearArms.com/lucas/roy.asp)' work being applied. Mr. Lucas has more Supreme Court experience than all the other gun rights attorneys combined, as far as I can tell. He's won unanimous decisions in S.Ct. and has victories in 11 of 12 circuit courts. Read up on him -- he's quite a tank on our side. His work is brilliant. Stunning, actually. You'll see it soon enough when we file the certiorari petition.

Shamaya
May 7, 2003, 01:10 AM
Wildalaska:Ya think its over in the Supreme Court...naaaahhh...theres a whole new world for the lawyers to explore...How true. Even the best possible S.Ct. ruling will not undo any other gun laws other than the one being challenged. The rest will have to be fought, one by one. But undoing a so-called "assault weapons" ban would make lots of those battles rather elementary. Then again, there are lots of issues to fight on. Registration, background checks, magazine capacity limits, carry laws, etc. etc. Lots of work to be done, even after the ideal bestest ruling we could possibly imagine.

Still, it'd be nice to get the big battle fought and won, right?

Telperion
May 7, 2003, 01:25 AM
Much as this has energized and encouraged me today, I just don't see us getting five robes to vote against California's AW ban. If they take the case, I think they'll rule for an individual rights interpretation (subject to reasonable restrictions, of course :rolleyes: ). That result would just hand us back the status quo where we are back in the trenches fighting tooth and nail against every "commonsense" disarmament law.

Maybe I need to stop thinking about this for today... :(

[Edit to fix the smilies]

Shamaya
May 7, 2003, 01:30 AM
That result would just hand us back the status quo where we are back in the trenches fighting tooth and nail against every "commonsense" disarmament law.If S.Ct. says a gun ban on mere semi-auto rifles doesn't infringe the Second Amendment, all bets are off, and there are no more rules.

pittspilot
May 7, 2003, 01:31 AM
Go Here (http://volokh.blogspot.com/) for some great analysis. Scroll down aways.

This is Eugene Volokh's Blog

Jim March
May 7, 2003, 01:34 AM
SkunkApe: I'm honored by the vote of confidence. But realize we're way out of my depth here, I can make only scarcely well informed comments.

The reason the approach taken by Gary and company in Silveira is considered "dangerous" by SAF, NRA (Chuck Michel, Don Kates, etc) and others is that the media demonization of "assault rifles" could lead to bias on the bench. Which is what we're actually seeing in this refusal of the En Banc hearing, the 3-judge panel's decision, etc.

Sun Tzu said "attack where the enemy is weak, flee from where he's strong". Basically, "pit your strength against his weakness, and don't bash heads with the core of his strength".

While Gary Gorski's approach is legally 100% correct, methinks he's taking a dangerous approach.

But then again, he's legally right. NO question.

He's got nerves, I'll say that. :D Which way is this gonna go? Hell if I know. It's some REAL high stakes poker, that's for damnsure. Mind you, I don't know ALL the cards Gary is now holding - Angel & co. has been paying for some real high-end legal talent in DC who might be able to tip this better than the 50/50 total crapshoot it looks like. Dear GOD I hope so.

As to Amicus briefs: I want somebody credible to do a real short brief basically saying nothing but "hey Judges, whatever else you do, DON'T try and say that per Cruikshank the 2A doesn't apply to the states, or use later cases to make that point which ultimately rest back on Cruikshank". We'll use Morton Grove as an example, it did exactly that (by way of Presser). We'll also point out what a racist piece of crap Cruikshank is.

The danger is that they'll retreat back to Cruikshank without noting how rotten it is. If it's pointed out what Cruikshank really was, Clarence will scream bloody murder if they try and rely on it as authority.

Shamaya
May 7, 2003, 01:52 AM
Howdy, Jim.Mind you, I don't know ALL the cards Gary is now holding - Angel & co. has been paying for some real high-end legal talent in DC who might be able to tip this better than the 50/50 total crapshoot it looks like. Dear GOD I hope so.Count on new and different, my friend. Roy Lucas is a reformed liberal who still has liberal-leaning tendencies and understands the mind of a liberal. You'll see that the cert. petition appeals to the liberal Justices in ways that command their attention. I told you before and I'll say it again: the guy's a friggin' legal genius. The first of four times I read every word of the developing cert. petition, I cheered out loud.As to Amicus briefs: I want somebody credible to do a real short brief basically saying nothing but "hey Judges, whatever else you do, DON'T try and say that per Cruikshank the 2A doesn't apply to the states, or use later cases to make that point which ultimately rest back on Cruikshank". We'll use Morton Grove as an example, it did exactly that (by way of Presser). We'll also point out what a racist piece of crap Cruikshank is.You're a sharp dude when you're not attacking me. :D How does a civil rights group catering to the African American community sound? Cruikshank is going bye-bye.

Jim March
May 7, 2003, 02:10 AM
Angel, I'm not gonna attack you again :). The page on my site doing that is gone. All I ask is that we stick with the basics on AB1044, not drag that into another squabble. Lockyer and company are the real bad guys on that one anyways.

As to Cruikshank: you've got that covered then? Good. One less thing for me to worry about :).

Shamaya
May 7, 2003, 02:20 AM
Angel, I'm not gonna attack you again. The page on my site doing that is gone.I won't hold you to that, buddy. Boys will be boys. :neener:All I ask is that we stick with the basics on AB1044, not drag that into another squabble. Lockyer and company are the real bad guys on that one anyways.We'll run whatever you finalize and get it out to our full CA list -- say the word. Buried in email, so if I don't respond pretty quickly, call.As to Cruikshank: you've got that covered then? Good. One less thing for me to worry about.Covered in theory. We've got the group to go, just need to come up with the moola to get the work done -- and the ample time to review it thereafter to make sure it's tight. We'll get it come hell or high water (or both!). Every time another outgoing wire must happen, just enough is there to do it... so far. I can't borrow any more money, so it's up to creativity. A whole bunch of sci-fi writers are going to redshirt characters (name characters for real people) for top donors to the suit, so that should take care of at least one amicus brief -- of the six we've got lined up. Other creative stuff on fundraising happening, just not fast enough to actually breathe a sigh of relief yet. Few people realize what it takes to go to S.Ct. I sure didn't.

Jim March
May 7, 2003, 02:26 AM
Quoting:

Covered in theory. We've got the group to go, just need to come up with the moola to get the work done -- and the ample time to review it thereafter to make sure it's tight.

There's a way of doing it "on the cheap" if the group will go along.

I can pen a first draft, send it to Peter Mancus for final cleanup and layout, it goes in under his name for the group in question. Betcha I can get Peter to kick in for free, on the assumption that my first draft will be good enough he doesn't have to put much time in.

Shamaya
May 7, 2003, 02:40 AM
There's a way of doing it "on the cheap" if the group will go along.

I can pen a first draft, send it to Peter Mancus for final cleanup and layout, it goes in under his name for the group in question. Betcha I can get Peter to kick in for free, on the assumption that my first draft will be good enough he doesn't have to put much time in.Get it started, please. I'll name our six amicus filers in person if you keep it confidential. Prefer not to release it publicly for a variety of reasons.

Just let loose of the need to have the final product emulate your verbatim approach. If your legal skills and my legal skills combined were a grain of sand, Roy Lucas (http://KeepAndBearArms.com/lucas/roy.asp)' skills are a few beaches. I've learned more about what it takes to get a case heard in S.Ct. in three months than most people ever know -- and my rampant legal ignorance still annoys him mightily. Subtlety goes much farther than footnotes. That's probably why I'd never make a good attorney. heh heh Put the nuts and bolts on it but save yourself the time of opinion unless it's brief and very to the point -- to make sure he gets it from an RKBA angle. The legal angle? He'll get it beyond and beyond what we think we understand.

Jim March
May 7, 2003, 02:57 AM
I'll get started. It'll be *short*. Two or three pages oughta do.

Once done I'll show it to you and Peter alone, see if he'll go along.

Pendragon
May 7, 2003, 03:32 AM
I have to hand it to you Angel.

I did not renew my KABA membership after the first year for the same issues Jim has/had.

However, lately, the NRA has just been doing the worst possible thing everywhere they poke their nose.

I am becoming cynical enough to think they actually like the murky situation we have today - that way they can call me with an "urgent message from Wayne" every time some flunky in congress comes up with a no-chance-in-hell anti gun bill.

Heck, I wonder if they dont pay some of these guys to write the junk for no other reason than to scare people into keeping up their NRA membership.


Anyway, I am currently striving to move UP to merely broke, but I will renew my KABA membership later this year and support this cause any way I can.

Good on you Angel and does red or white wine go best with crow?

Jim March
May 7, 2003, 03:50 AM
Dunno. I don't drink. Gotta wash it down with Jolt Cola or something :o.

Anyways.

Another question arises: is there any way we can use Lockyer's documented illegality in CCW paperwork against him in the Silveira case? Kind of "evidence of bias", either raised by Gary somehow or in an amicus? I'm talking about the material I'm documenting regarding the '99 CCW forms cover-up, and AB1044. Lockyer violated state law, period, full stop, in order to cover up HORRIBLE stuff - there has to be a way to turn that against him?

Shamaya
May 7, 2003, 03:55 AM
Pendragon:I have to hand it to you Angel.

I did not renew my KABA membership after the first year for the same issues Jim has/had.You and a lot of other people who drop me a note every week or two! :D It ain't easy being the bearer of bad news. Galileo was executed.

FYI, KABA wouldn't exist if NRA's management wasn't a bunch of politicians with pretty faces and fancy suits. NRA members are the best people there are -- it's the management that needs replacing. It's a damn shame they aren't what they pretend to be. I'd rather be following my dream of doing music. I'm quite a singer, and I can write a song to any tune you play on your guitar in about 90 seconds. "Some day," I tell myself...However, lately, the NRA has just been doing the worst possible thing everywhere they poke their nose. I am becoming cynical enough to think they actually like the murky situation we have today - that way they can call me with an "urgent message from Wayne" every time some flunky in congress comes up with a no-chance-in-hell anti gun bill.Some NRA fella on another thread today inspired me to write this rough draft: http://keepandbeararms.com/nra/guncontrol.htm

I've only got 20 minutes in it, so it's not polished yet -- keep that in mind. Sometimes I remove my more direct communications so as not to inflame people who hate brutal honesty. (There's a fine line between lighting brushfires and igniting blazing infernos. I'll let you know if I ever find it!)

I don't LIKE that those things are true. But the fact that I don't LIKE something doesn't negate its presence in Reality, unfortunately.Heck, I wonder if they dont pay some of these guys to write the junk for no other reason than to scare people into keeping up their NRA membership.NRA has confessed to writing gun laws that get "attacked" -- that's not just a fear; it's happened. But even scarier, on the link above, is the gun control NRA BRAGS ABOUT.Anyway, I am currently striving to move UP to merely broke, but I will renew my KABA membership later this year and support this cause any way I can.We don't want to break a family's finances, Pendragon. In fact, hang back on pitching in for two or three more months and we will PAY YOU to promote our organization. The whole power structure of the "send us all your money" gun rights movement is about to undergo a RADICAL change. I'd like to have a few thousand gun rights activists working full time for liberty and making a good living doing it. I intend to make that happen. A plan, years in the making, will be announced within two or three months. Until then, get your financial stability in your own life before you go giving money to civil rights groups. And thanks for having the courage to look beyond my crusty exterior to what I'm actually getting at. I care about freedom. That's it. I want the war being waged against our rights to end in time for my infant son to get his first machinegun.Good on you Angel and does red or white wine go best with crow?I usually wash my crow down with coffee -- so I can keep working.

Shamaya
May 7, 2003, 04:05 AM
Another question arises: is there any way we can use Lockyer's documented illegality in CCW paperwork against him in the Silveira case? Kind of "evidence of bias", either raised by Gary somehow or in an amicus? I'm talking about the material I'm documenting regarding the '99 CCW forms cover-up, and AB1044. Lockyer violated state law, period, full stop, in order to cover up HORRIBLE stuff - there has to be a way to turn that against him?That's a really good question, Jim. I must confess I don't have a really good answer. The case and its justifications are already a matter of record. Bringing in a whole new set of issues, and evidence to back them up might be possible, and even helpful. But I'm just the wrong guy to get a good opinion from on that matter. Ask Gary. If it's doable judicially, he'll touch base with Roy on strategy and viability. Personally, I think the whole Lockyer approach on the case doesn't go for his throat like I'd like to see happen -- and your data certainly paints him into a nasty little corner.

Let me know what you find out.

Jim March
May 7, 2003, 04:15 AM
I'll talk to Gary.

Gray Peterson
May 7, 2003, 05:52 AM
I'd like to have a few thousand gun rights activists working full time for liberty and making a good living doing it. I intend to make that happen. A plan, years in the making, will be announced within two or three months.

Count me in, Angel! There are thousands of out of work pro-gun rights folk who need it, and quite frankly, I need it too.

Hope you won't terribly mind a gay man in your corner. Pink Pistols and all. :D

Henry Bowman
May 7, 2003, 09:41 AM
IF the S.Ct. takes up the case, here's what we HAVE to hammer home:

Quote:

"Like any right, it is not absolute. Just
as the right to freedom of speech is subject to limitations for
defamation, threats, conspiracy, and all sorts of other traditional
qualifications, so is the right to keep and bear arms.
Indeed, the word “infringed” in the Second Amendment suggests
that the right, such as it is, may not be “encroached upon,”
rather than that it, unlike all the other rights in the Bill of
Rights, is absolute. The one thing that is absolute is that the
Second Amendment guarantees a personal and individual
right to keep and bear arms, and prohibits government from
disarming the people."


Let's look at limitations on the right to freedom of speech. Just because some one has (or a few people have) yelled "Fire!" in a crowded theater, we don't ban theaters, ban crowds, or require attendees to wear a gag. Defamation is not a felony. It is a civil cause of action to recover damages after the fact. We do not take away paper, pens, or computers from everyone just because some one has defamed others in the past. We do not even infringe on the defamer's ability to defame again in the future. Making threats or conspiring to commit a crime are crimes themself. We do not, however, require these people to wear gags or never to associate with others after they have served their sentence. Nor do we do this pre-emptively to all because others have abused these rights.

If so called "limits" on 1st Amend. rights is to be used as an excuse for "reasonable regulation" on the 2d, lets hold them to intellectual honesty.

cordex
May 7, 2003, 11:49 AM
WildthereareabsolutelynoabsolutesAlaska,
I'm with Henry.
The right to express one's-self ends where you begin to cause harm to others. No yelling fire in a crowded movie theatre - unless there is a fire.
Same limitations should exist for the right to keep and bear arms. In other words, own what you like, buy/sell/use what you like, but you're not allowed to shoot up someone's car/house/dog/body - unless it is in justifiable self defense.
Right?

enfield
May 7, 2003, 02:02 PM
EXACTLY right!

Shamaya
May 7, 2003, 04:09 PM
Count me in, Angel! There are thousands of out of work pro-gun rights folk who need it, and quite frankly, I need it too.

Hope you won't terribly mind a gay man in your corner. Pink Pistols and all.I don't care what you do in your bedroom or under a shade tree. Our organization's official Inclusion Policy was published a long time ago and has been used to get rid of all kinds of bigots: http://KeepAndBearArms.com/about/inclusion.asp

rock jock
May 7, 2003, 04:35 PM
Just sent KABA $100 earmarked for this case. Make us proud!

Pendragon
May 7, 2003, 04:47 PM
Yeah, because, uhm, I only want my rights if they are secured by white christian straight men who belive exactly like me -otherwise, why bother?:rolleyes:

Smurfslayer
May 7, 2003, 05:04 PM
Honestly, I don't think we have 5 "strict constructionist" justices who will rule in favor of an "individual rights" view.

I think that Thomas and Scalia would hold to Individual rights, with emphasis on individual.

I think that Rehnquist, and O'connor would say that it is an individual right with narrowly tailored exceptions and subject to police power of the state with emphasis on the latter 2 points

We will have AT Least Breyer, Ginsburg, and souter will completely ignore any prior rulings on the BOR to support the "collectivist" view.

Not sure the other 2.

I think that they may actually take the case though, in order to get out in front of it. They realize full well the impact of 2a being interpreted as a strict individual right, and they will be under immense pressure to not rock the boat. In the end, I think they will walk the tightrope between the circuits and say that 2A is an individual right, subject to reasonable restrictions - such as a ban on "assault weapons" for the "compelling state interest" of society as a whole ( for the children! ).

So.... What happens ? What if SCOTUS rules 1 way or the other ? What if they say :
1: Individual right, law is unconstitutional on it's face. No other law is going to dissolve away into history, on the contrary, AG Ashcroft, and all the state AG's will state in abundantly clear terms, that all gun control laws meet the constitutional test, and will be vigorously enforced.

Very seldom does the SC make a blockbuster ruling. Very often, their rulings favor the State. Very, Very seldom does the SC overrule a previous ruling of the SC. On just these points, we stand about a 1 in 10 chance if the case is accepted.


I'd like to see us win big, I'm just not sure yet... And once more information is out there, I'll revise my opinion. Let's keep our fingers crossed...

Frohickey
May 7, 2003, 05:42 PM
An individual rights decision, if the SCOTUS were to make one, would be a boon to attorneys.

Imagine the money to be made by trial attorneys litigating against all the gun control laws ever since Jim Crow? That is money that would otherwise have been sent to the NRA-ILA to wine and dine politicians that have pledged an oath to support and defend the Constitution. :rolleyes:

rock jock
May 7, 2003, 05:55 PM
Frohicky,

You can't make a claim against the govt. in this case. They would say that they passed and enforced laws in an manner consistent with the interpretation of the Constitution at that time.

tyme
May 7, 2003, 06:37 PM
Wouldn't the vehemence of a hypothetical decision and points made in the decision have a significant effect on what happens with other laws?

If the SCOTUS says "It's an individual right, and preventing people from having some type of firearm is not constitutional" would any DA in his/her right mind try to enforce gun bans? If they say (unlikely) "It's an individual right, and all these bans on types of guns and concealed carry have no real effect on crime so there's no compelling interest in limiting the 2nd in such ways" then would any DA in his/her right mind bother to enforce any such laws? I don't think they're dumb. I doubt they'd want to waste taxpayer money knowing all the defense has to do is point to a SC case and watch it get thrown out. Judges aren't dumb either, they don't want to make decisions that are certain to be overturned on appeal (except the 9th circuit - thank $deity I don't live in that circuit).

Wildalaska
May 7, 2003, 07:50 PM
I think that they may actually take the case though, in order to get out in front of it. They realize full well the impact of 2a being interpreted as a strict individual right, and they will be under immense pressure to not rock the boat. In the end, I think they will walk the tightrope between the circuits and say that 2A is an individual right, subject to reasonable restrictions - such as a ban on "assault weapons" for the "compelling state interest" of society as a whole ( for the children! ).

Thats the proper result though..but keep in mind that a factual record must be developed to demonstrate a compelling state interest. Anyone think they would ever be able to develop same?

WildiwillbeprovedrightinthenedAlaska

Intune
May 7, 2003, 08:22 PM
Wild: "Thats the proper result though.."


Good, correct, appropriate, suitable, right, fitting? :confused: Or did you mean probable?

Shamaya
May 7, 2003, 08:31 PM
Imagine the money to be made by trial attorneys litigating against all the gun control laws ever since Jim Crow?As another gentleman said, suing wouldn't be so easy. But "Reparations" being the buzzword these days, I'd certainly support a Gun Owner Reparations Campaign to help families sort out their lives once their political prisoner family members come home from the federal gunowner gulags. There are people in prison right now for exercising their basic rights -- most of them put there by the BATF Gun Nazis who pride themselves on such thuggery.

Wildalaska
May 12, 2003, 11:52 AM
And I forgot to mention Judge Kleinfeld is from Alaska:D

WildsaythankyouAlaska

243_shooter
May 12, 2003, 08:49 PM
Shamaya

Well, I was sufficiently impressed by this thread to go join up on keepandbeararms.com

I know this might be a bit OT, but I found the signup process to be a bit "confusing" in the way it works. Might want to streamline things a bit more towards the K.I.S.S. school of web design. Had I not been in the mood to wade through it I would have clicked away and never gave it a second thought (say if I just browsed upon your sight, I wouldn't have taken much time to browse through it, and surely wouldn't have signed up).

But since I got the impression from your posts that your really trying to do good work, I signed up anyway ;)

My .02

Leo

Wildalaska
May 12, 2003, 09:14 PM
Good, correct, appropriate, suitable, right, fitting? Or did you mean probable?

All of the above.

There are people in prison right now for exercising their basic rights -- most of them put there by the BATF Gun Nazis who pride themselves on such thuggery.

Just the type of comments we look for in a mainstream political group that supposedly will be trying to convince a Court, and the nation, that there position is right...:barf:

WildstillahventansweredmyearlierquestionsAlaska

Shamaya
May 12, 2003, 11:17 PM
quote:
--------------------------------------------------------------------------------
There are people in prison right now for exercising their basic rights -- most of them put there by the BATF Gun Nazis who pride themselves on such thuggery.
--------------------------------------------------------------------------------

Just the type of comments we look for in a mainstream political group that supposedly will be trying to convince a Court, and the nation, that there position is right...Ya. Don't tell the truth because it's ugly. ;)

The BATF is run on a scam. There are good agents, I'm told, but what I see is an armed gang of gun nazis. And there's plenty of evidence to back up such an assertion, for those willing to look at such things: http://www.elfie.org/~croaker/batfabus.html

But you talk sweet about them if you want to, please -- be my guest. BATF has put decent people in prison and patted themselves on the back for a job well done -- imprisoned for exercising their rights. BATF is to gun owners what Hitler's SS Troops were to Jews. They're not as advanced in some ways, but just as bad and even worse in others. I stand by that statement and will never back down from it. Jack Booted THUGS.

Shamaya
May 12, 2003, 11:20 PM
Leo,

Definitely interested in specific feedback to improve the process. We've refined it several times. It's a third-party custom built system with lots of bells and whistles, but some definite quirks. Email directly rather than tie up more space on the THR server: Director@KeepAndBearArms.com

And thank you. We believe our case will be heard and won, 7-2 or better.

--AS

Preacherman
May 12, 2003, 11:33 PM
Point 1: This is your moderator speaking. Please, folks, when you post, remember to take The High Road. Insults and personal remarks are NOT appropriate, and WILL be stomped on.

Point 2: Shamaya, I want to differ with you in regard to the ATF. Sure, some of their members have behaved like "jack-booted thugs", and this is well documented. However, this agency does a whole lot of really important and valuable work, and you should not dismiss the whole barrel of apples for the sake of some bad fruit. In the fight against international gun-running (e.g. the smuggling of guns to the IRA and other terrorist organizations), the analysis of explosives used in crimes, and a bunch of other areas, the ATF does a very good job under very difficult and dangerous conditions. Even in their "gun-law enforcement" mode, there are many good, upright, honest agents who are pro-2nd Amendment and do their best to put a "human face" on an otherwise problematic bureaucracy. I've had the pleasure of getting to know a few of them, and have found them to be straight-up guys who would "cover my 6" anytime - as I would do for them.

So, please don't issue a blanket condemnation like:BATF is to gun owners what Hitler's SS Troops were to Jews. They're not as advanced in some ways, but just as bad and even worse in others. I stand by that statement and will never back down from it. Jack Booted THUGS.This may apply to some of them, but is most emphatically FALSE as a general statement. It's also not taking The High Road, which we encourage whenever possible.

tyme
May 13, 2003, 12:40 AM
(AS) And thank you. We believe our case will be heard and won, 7-2 or better.
Wow! I cannot wait to read KABA's forthcoming law review article.
(PM) However, this agency does a whole lot of really important and valuable work...analysis of explosives...
I'm not sure they do a whole lot of it relative to their enforcement of gun regulations, but yeah, I'll grant that they do some work that ought to be done by the FBI, and it's important work.
(PM) In the fight against international gun-running (e.g. the smuggling of guns to the IRA and other terrorist organizations)
If this is such a problem, why is it the U.S. Government's problem? Perhaps MI6 should send secret agents over here to trail known IRA gun-runners. Isn't this really an issue for British Customs?

Whether particular BATF field agents are nice most of the time is irrelevant. At best, their niceness dulls the reality that they are annoying agents of a clearly unconstitutional arms-control scheme supported by [at least portions of] every branch of government, people who would be prosecuted under RICO statutes if their government umbrella got carried off by the wind. At worst, they are murderers, liars, and terrorists.

If they want to be involved in a morally bankrupt enterprise, they should deal heroin. At least then they'd make more money, they'd have (at least temporarily) satisfied customers, and their work would be more honest.

Some of the most heinous criminals in history seemed nice to those who knew them. Some had families. Some of the very worst even worked for governments, and were ordinary, humble people outside of their jobs. I'm baffled why people think that really bad government agents would appear to be psychopaths. Not too many of them are.

Jim March
May 13, 2003, 01:32 AM
Preacherman:

I believe there's a "structural problem" with the BATF(E) that has existed for a long time. Or rather, there's actually two:

1) When you have a regulatory agency that also contains an enforcement division which enforces those "regulations", the "armed enforcers" take any violation of said regulations as an "insult", and expend law enforcement resources out of all proportion to the actual problem. It's worse when the armed enforcers "specialize" in just those regulations.

This isn't just a BATF problem; wardens of the California Department of Fish & Game have been spotted going to insane lengths to grab somebody's ferrets, including in one case a multi-day stakeout :rolleyes:.

Agencies gain regulatory power by the authority of Congress. That alone is a blend of "legislative" and "executive" authority. Once the agency has it's own armed enforcers, the blend is simply WAY too much, and graphically illustrates why the legislative and executive branches were split in the first place.

2) I would argue that even when the regulatory/enforcement functions are properly split (as they've *never* been at the BATF), having cops that "specialize" in a certain area of law is a bad idea because again, "perspective is lost". At least 21 members of the SFPD saw my skinnykitties over several years, and none considered them a "serious law enforcement issue". Had just one warden seen 'em, he/she/it would have gone utterly bananas.

------------

Of these two problems, I consider #1 the most serious and something that must be stomped out at all costs.

#2 is going to happen to some degree, but can be massively scaled back from where it's at now. BATF(E) in particular should be rolled into the FBI. The merger of Customs and DEA is a partial blueprint, although it can be done better.

Preacherman
May 13, 2003, 01:48 AM
Tyme, Jim, you'll note that I'm not arguing with the position that the ATF has committed some monumental mistakes, even criminal ones: nor do I disagree that individual ATF agents have behaved like "jack-booted thugs", to quote an oft-used expression. I also agree with you, Jim, that:...there's a "structural problem" with the BATF(E) that has existed for a long time.Nevertheless, I must request that our discussion of the ATF take The High Road. Let's not condemn anyone and everyone working for the ATF - that would be monumentally stupid on our part, and completely unjustifiable. That was my point in responding to Shamaya's post. We can discuss the shortcomings of the ATF - and I agree that there are many - without becoming as obnoxious and anti-social as some of their agents have become... Blanket condemnations are a blunt instrument, frequently too unwieldy to perform the surgical dissection of the problem that is really required to solve it.

tyme
May 13, 2003, 02:19 AM
I'm confused. Most people here seem to believe in responsibility. Are they responsible for working for what is primarily a crime syndicate, or are they not? You can probably take particular BATF employees and show they couldn't get any other job paying enough to support their family due to whatever exigent circumstances, but seriously, at that point why not sell drugs? Is being a BATF employee better than dealing drugs? Dare we contemplate which profession most of the founders would go into were they asked to choose? There are a variety of less-risky crimes, even, and at least when committing those crimes they wouldn't pretend to be doing what's right. They wouldn't pretend to be a part of civilized society.

Is it morally acceptable to work for the Mafia as long as you're not personally involved in killing or stealing?

Jim, I'm not sure the SFPD's impression of ferrets means much. The SFPD doesn't consider crackheads shooting up in public and theft to be serious law enforcement issues, either. :rolleyes:

Jim March
May 13, 2003, 02:36 AM
You know, Tyme has a point (about BATF, not the ferrets :D).

The sheer volume of complaints about BATF, the number of truly whacked incidents means that anybody really sane would have got the heck out :uhoh:. I mean, the entire Beavis & Butthead movie was one long jest at the BATF's expense, that sort of thing has to have it's effect on department morale!

At what point do you start to wonder about those left?

Sorry if that offends anybody but, it's a serious question.

Coronach
May 13, 2003, 02:38 AM
Jim, I'm not sure the SFPD's impression of ferrets means much. The SFPD doesn't consider crackheads shooting up [sic] in public and theft to be serious law enforcement issues, either.Careful, Tyme. You'll get voted off the libertarian island. ;) Many of the more vocal THR members wouldn't consider crackheads plying their trade in public to be a LE issue, either.

Mike ;)

Jim March
May 13, 2003, 03:19 AM
Not to mention that "crackheads" by definition don't shoot up!. They smoke the crap.

:neener:

Seriously though, the very fact that drugs are illegal contributes to the massive nuisance value connected with using/selling/making the stuff. I'm quite severely libertarian, but I dang well drove a meth lab out of the basement of my apartment building once :eek:.

mercedesrules
May 13, 2003, 12:33 PM
The Bureau of Alcohol, Tobacco and Firearms is an armed tax-collection agency. How many here think these products should be taxed? How many here like these taxes?

I think taxes are theft, so I don't think that there can be any such thing as a good BATF agent.

To me, the "high road" should be the moral high ground. One group of men taxing another group on their alcohol, tobacco and firearms purchases is immoral. When government stops stealing from me, I'll stop criticizing them.

MR

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